State v. Ruocco

322 Conn. 796

144 A.3d 354

STATE of Connecticut

v.Dustin RUOCCO.

No. 19387.

Supreme Court of Connecticut.

Argued Jan. 25, 2016.

Decided Sept. 6, 2016.

Jennifer F. Miller, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Marc G. Ramia, senior assistant state's attorney, for the appellant (state).

Alice Osedach, assistant public defender, with whom, on the brief, was Katrina Cessna, certified legal intern, for the appellee (defendant).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

PALMER, J.

After a jury found the defendant, Dustin Ruocco, guilty of burglary in the third degree and larceny in the third degree, the Appellate Court reversed his conviction upon concluding that it was plain error for the trial court not to instruct the jury, as mandated by General Statutes § 54–84(b),¹ that it may draw no unfavorable inferences from the defendant's failure to testify. State v. Ruocco, 151 Conn.App. 732, 744, 754, 95 A.3d 573 (2014). We granted the state's petition for certification to appeal, limited to the issue of whether the Appellate Court properly reversed the defendant's conviction under the plain error doctrine. State v. Ruocco, 314 Conn. 923, 100 A.3d 854 (2014). We affirm the judgment of the Appellate Court.

The opinion of the Appellate Court, as supplemented by the record, sets forth the following facts that the jury reasonably could have found. “The defendant and his girlfriend, Denise Cintron, rented a basement apartment from Thomas Blake in [the town of] East Haven. Blake's property is immediately adjacent to property owned by Donald Gennette (Donald) and Maria Gennette (Maria). There is a shed in the backyard of the Gennettes' property located approximately twenty feet from the Gennette–Blake property line.

“On May 5, 2011, Donald and Maria went to work at 6:20 a.m. and 7:15 a.m., respectively. Maria returned home at 11:40 a.m. to take care of her grandchild while her son went to work. Upon arriving home, Maria observed the defendant and Cintron sitting in the defendant's vehicle, a red Toyota Corolla. Maria then took her dog for a walk in her backyard and observed that the defendant's car, although on the Blake property, was parked immediately next to the Gennette–Blake property line. Maria noted that the defendant's car was parked in close proximity to her shed and that the location of the car was unusual because she had never seen the car parked there before. Maria observed that Cintron was now alone in the vehicle.

“Cintron exited the vehicle and began to ask Maria questions about her dog. This interaction was unusual, according to Maria, because Cintron had never spoken to her during the nine months that Cintron had resided on the Blake property. After Cintron ... questioned her for about two minutes, Maria went back inside her house. Approximately ten minutes later, at 12:15 p.m., Maria, her son, and [her] grandchild departed, leaving no one in the house. Upon leaving, Maria observed that the defendant's car had not moved.

“Maria returned home at 3:15 p.m. and noticed that an exterior light on the shed was turned on, which she described as unusual. Donald, an experienced electrician, explained how he had wired the exterior light on the shed. He explained that a switch inside the shed controls the exterior light. If the switch is in one position, the light stays on continuously. If the switch is in the other position, the light is controlled by a motion sensor mounted on the exterior of the shed. The motion sensor will [cause] the light [to turn] on if someone moves in front of [the sensor]. He explained, however, that he configured the motion sensor so that it is disabled while it is light outside. The only explanation for the light being on during the day is that someone went inside the shed and put the switch in the position that turns the light on continuously. According to Donald, on May 5, 2011, the exterior light was off when he left for work and should have remained off throughout the day.

“Donald was ‘suspicious' after Maria told him that the defendant's car had been parked on the property line and that the exterior light on the shed was on when she arrived home. Donald went into the shed and noticed [that] several items were missing. He immediately called the police and spoke with his neighbor, [Ricardo] Gallo, who resides on the other side of the Gennettes' property. Gallo was unemployed at the time and testified that he was home painting his son's room on the date in question.

“At 2 p.m. on May 5, 2011, Gallo observed the defendant enter the Gennettes' shed, remove items from it, and place them in the trunk of [his] car, which was parked in close proximity to the Gennette–Blake property line. Gallo stated that, although he observed someone other than one of the Gennettes removing items from their shed, he ‘[did not] want to assume that [the defendant] was stealing’ because it was possible that the defendant was assisting Donald with his work as an electrician. Gallo later reported his observations to the police after Donald notified him that he called to report the burglary.

“Officer Craig Michalowski of the East Haven Police Department responded and met with Donald, Maria, Gallo, and Blake. Donald told Michalowski that the following items were taken from his shed: (1) a chain saw; (2) a miter saw; (3) a drill; and (4) a ‘cordless kit’ containing a drill and two saws. The next day, after Donald conducted a more thorough search of the shed, he reported to the police that he was also missing (1) sixty to seventy feet of ‘two aught’ copper wire, (2) ‘a couple [of] rolls' of ‘number two’ wire, (3) approximately 750 feet of yellow ‘Romex’ wire, and (4) approximately 750 feet of white ‘Romex’ wire. Donald had this wire on hand in order to perform a specific modification to his house's electrical system.

“After his initial investigation, Michalowski identified the defendant as a potential suspect.... He continued the investigation by checking the records from area scrap yards and pawn shops in order to determine whether the defendant sold any of the items taken from the shed. Michalowski explained that when someone sells something to either a scrap yard or [a] pawn shop, the businesses keep a record of the date and time of the sale, the item sold, and the seller's name and address. The businesses send these records to the police department approximately every six weeks. Michalowski checked the records on file at the police department and found that, at 6:55 a.m. on the day after the burglary, the defendant sold wire to a scrap yard that was consistent with the type of wire reported missing from the Gennettes' shed.

“The defendant was arrested on June 14, 2011, and charged with burglary in the third degree and larceny in the third degree. At trial, the defendant [who did not testify, presented an alibi witness who claimed that the defendant was with him at the time of the alleged burglary. The defendant also] argued that Donald had lied about the amount of wire taken in order to defraud his insurance company. He specifically argued that Donald's account of the amount and value of the wire taken from the shed was inconsistent. Moreover, the defendant argued that the amount of wire purportedly in the shed was disproportionate to the amount necessary to modify the electrical system for the Gennettes' house, as Donald had claimed. [In addition, the defendant maintained that the amount of wire and tools Donald claimed had been stolen could not have fit inside the trunk of the defendant's vehicle. In light of the foregoing, the defendant further argued that] the state did not prove beyond a reasonable doubt that the property taken was worth more than $2000, the amount necessary to [sustain a conviction] of larceny in the third degree pursuant to [General Statutes] § 53a–124 (a)(2).” (Footnotes omitted.) State v. Ruocco, supra, 151 Conn.App. at 735–38, 95 A.3d 573.

At the conclusion of the evidentiary portion of the trial, the court instructed the jury on the governing legal principles. Although the defense made no contrary request, the trial court did not instruct the jury, as required by § 54–84(b), that it could draw no unfavorable inferences from the defendant's failure to testify. Thereafter, the jury returned a verdict of guilty on both counts, and the trial court rendered judgment in accordance with the verdict.

The defendant appealed to the Appellate Court, claiming, inter alia, that the trial court's failure to instruct the jury in accordance with § 54–84(b) was plain error entitling him to a new trial. The Appellate Court agreed, stating in relevant part: “[T]he total omission of the no adverse inference instruction is plain error that is not subject to a harmless error analysis. The unconditional language of the statute is a legislative mandate, and the failure to use that language is a pivotal aspect of the defendant's privilege against self-incrimination. The statutory language is based on a constitutional right, and its omission can never be harmless.”² (Internal quotation marks omitted.) Id., at 743–44, 95 A.3d 573, quoting State v. Suplicki, 33 Conn.App. 126, 130, 634 A.2d 1179 (1993), cert. denied, 229 Conn. 920, 642 A.2d 1216 (1994).

On appeal, the state contends that the Appellate Court incorrectly determined that the total omission of the statutorily required no adverse inference instruction was not subject to harmless error analysis. The state further maintains that, if the Appellate Court had undertaken such an analysis, as it was required to do, it would have recognized that the defendant was not prejudiced by the omission of the required instruction because “the balance of the instructions facilitated the appropriate application of the law” and because the evidence of the defendant's guilt was so overwhelming that the verdict would have been the same even if the instruction had been given. We are...